Widower sues AG over share of wife’s wealth
The Law of Succession Act says that a will refers to all that a person wishes to happen upon his or her death.
Are widowers discriminated against by the Law of Succession Act?
And who is to blame for the discrimination?
Well, a judicial officer who lost his wife last year thinks so and that the Attorney-General (AG) is to blame for the predicament and other widowers go through.
The officer has moved to court seeking court’s nod to declare Section 29(c) of the Law of Succession Act as discriminatory therefore, illegal.
The man identified as DKM, to protect his children, says the Section indicates that where the surviving spouse is a man, he has to prove that he was being maintained by his deceased wife, before she died. The same does not apply to women who have lost their husbands.
It is his argument he said Section violates Article 24 of the Constitution, which stipulates that rights or fundamental freedoms in the Bill of Rights shall not be limited except by law.
“That the impugned Section seeks to limit the enjoyment of the fundamental right to equal protection and benefit under the law and the constitutional guarantee of matrimonial equality,” he said.
DKM states in his court documents that his wife- CWN- died on July 24, last year on her way to work. The death was mysterious, he said.
The two were married in April 2002 under the customary law and they were blessed with two children.
He admits that despite living separately since 2022, the two enjoyed a rather cordial and harmonious relationship.
Their children, he added, were well catered for and enjoyed an abundance of parental love. The arrangement was cordial and blissful.
Soon after her death, DKM moved to court to stop the burial process, saying it was planned without his involvement.
DKM says he was informed of the burial but he was blocked from the process. She was eventually buried in Meru County on August 4, 2023 against his wish for CWN to be buried in Embu County.
The judicial officer said the saddening state of affairs he went through displays the gruelling lengths that widowers like him have to go through to even have a say in their late wife’s final send-off.
“That in addition to the uphill task regarding the deceased send-off, the petitioner by dint of Section 29(c) of the Law of Succession Act will have to prove dependence on the deceased if he is to be considered as a dependant with regards to the net estate,” he said in the court documents.
The said Section states that where the deceased was a woman, the husband must show that he was being maintained by her, immediately before her death.
Through lawyer Shadrack Wambui, the judicial officer said the Section places conditions on the husband to discharge the burden imposed on him by proving that he was being maintained by his late wife.
Mr Wambui said whereas Acts of Parliament enjoy a presumption of constitutionality and fully aware that discrimination can be allowed under the law, the petition was a clear cut example of unfair discrimination that runs afoul of the constitutional guarantee of equality before the law.
The lawyer said the discrimination lacks any justification and legitimate purposes in addition to ‘lacking a rational connection between the differentiation and the purpose’.
He said the judicial officer and his teenage children face the real and looming threat of being disinherited whereas they are the lawful dependents of the estate of the late CWN.
The lawyer pointed that in 2021, the Senate discussed the Law of Succession Bill, 2021 which proposed to amend Section 29 and substituting the words with spouse or spouses and children of the deceased whether or not maintained by the deceased prior to the deceased’s death.
The law was passed and assented to on November 17, 2021 by amending Section 3 of the Act but he said it excluded the bulk of the contents contained in the Bill.
Mr Wambui submitted that the violation of the constitution is clear and directly relevant to the matter and there is no alternative form of ordinary relief, and the court is therefore, the proper forum to address it.
He said the petition is brought in public interest and on behalf of the group of persons being actively and unfairly discriminated against by placing pre-qualifications without any logical justification whereas others are not subjected to the same treatment.
The judicial officer has sued the Attorney-General seeking order to compel the state law office to take the necessary steps to ensure the offending Section is amended.
“A declaration be and is hereby issued that Section 29(c) of the Law of Succession Act is declared unconstitutional, null and void to the extent that it places preconditions on widowers to prove dependence on their late wives as a condition to be deemed as dependents worthy of benefitting from succession,” DKM said.
The Attorney-General through Jackline Kiramana opposed the petition and asked High Court judge Lawrence Mugambi to dismiss the case.
The lawyer said the Attorney-General has wrongfully been joined in the petition as it has no mandate in enacting and amending legislation.
“Moreover, repealing a law does not fall in the preview of the functions of the Attorney-General and that a petition to sue him as a party when it comes to challenging the constitutionality of a legislative authority is misconceived,” she said.
Ms Kiramana said that in as much as the petition alleges that Section 29(c) of the Law of Succession Act is unconstitutional, the source of the instant dispute relates to the administration of the estate of CWN, which puts the dispute squarely in the purview of the Family Division of the High Court.
She submitted that the petition will require an interrogation into the nature of DKM’s relationship with the deceased, which can be effectively handled by the Family Division where a succession case is pending.
Ms Kiramana said DKM has failed to state with precision and demonstrate how the alleged rights were infringed by the Attorney-General as required in law.
“The role of the Respondent is defined in Article 156 (1) (4) of the Constitution and, as “the principal legal adviser to the government” is limited in legislative matters. It would be wrong to require the Attorney-General to take steps and report on progress towards enactment or amendment of law a process he has little control over and there is no basis for compelling the Attorney General to ensure legislation is enacted,” she said.
The lawyer added that there have been previous attempts to amend the law but the efforts have a come a cropper.
Justice Mugambi directed the case to be mentioned on November 6 for highlighting of submissions.
